Introduction By NYSBA Committee on Animals and the Law

Earth Day has passed and now it is time to acknowledge the endangered species of the world.  Since 2006, Endangered Species Day has been commemorated on the third Friday of May.  This year Endangered Species Day, which was started by the United States Congress, falls on May 20th.  In honor of Endangered Species Day, the Committee has prepared an article[1] on the history, current status and future of the Endangered Species Act.  The article touches upon how the gray wolves were delisted as endangered species in a rider attached to Congress's Budget Bill.

The Committee is a diverse, compassionate, dedicated and professional group committed to making a difference for animals and people.  Since its inception in 2002, the Committee has tirelessly worked to elevate Animal Law and thereby help animals and people through constructive and innovative means.  The field of Animal Law, which covers a variety of areas of the law (i.e. criminal law, housing law, wills and estates, agriculture law, administrative law, contracts, disabilities law, family law, international trade, and torts), is growing every year.

The Committee is always looking for young attorneys to join us in our efforts.  We also offer a mentor program.  If you are interested in learning more about becoming a Volunteer Attorney for the Committee or would like to become a part of our mentor program, please visit our website: www.nysba.org/animals.  You can also email Committee Goodwill Ambassador Ashlee K. Cartwright at ashlee.k.cartwright@gmail.com.

History of the Endangered Species Act

In 1966, Congress passed the Endangered Species Preservation Act to provide “a means for listing native animal species as endangered and giving them limited protection.” [4] Lawmakers were originally inspired to create this law because of the predicament of the whopping crane.

In 1969, Congress amended the Act to become the Endangered Species Conservation Act.[5] Congress chose to amend the Act in order to “provide additional protection to species in danger of ‘worldwide extinction’.”[6] Specifically, the “Save the Whales” movement helped pressure the changes in the Act.[7]        

The current Endangered Species Act (ESA) was passed by Congress in 1973.[8] The Act was nearly unanimously passed. It aimed to make “endangered species protection of highest priority of the government.”[9] It was passed to take greater strides “to recognize that endangered and threatened species needed worldwide protection through development of international treaties and conventions.”[10] Congress greatly supported the Act because of the fear that species extinction would ultimately harm humanity and its progress. It was argued: 

“As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly) we threatened their and our own genetic heritage. The value of this genetic heritage is, quite literally, incalculable. From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned.” [11] 

There are two ways to initiate the process of listing a species under the ESA: either through the petition process, which allows any interested individual person or organization to petition to the Secretary of the Interior to add or remove a species from the list of endangered or threatened species, or the candidate assessment process, whereby the Fish and Wildlife Service or the National Marine Fisheries Service identify a species as a listing candidate.[12] After the Fish and Wildlife Service or National Marine Fisheries Service determines that listing is warranted, a proposed rule is published in the Federal Register.[13] If it is then decided that a species needs protection under the ESA, a final rule is published in the Federal Register, and the listing is considered official.[14]  Once a species is listed, the ESA also allows for the designation of “critical habitat” to protect said species’ environment.[15]

Since the initial passage of the ESA, there have been various amendments. The 1978 Amendments were made in the same year as the Tennessee Valley Authority v. Hill decision, in which the Supreme Court ruled that the “plain intent” of the ESA must be followed “whatever the cost.”[16] The direct result was that the Tellico Dam project, for which $78 million had already been spent, was halted to protect and preserve the snail darter, a rare fish native to the Little Tennessee River.[17] Following the ruling, Congress made several attempts to weaken the overarching power of the ESA. The 1978 amendments were created to introduce some flexibility in the form of exemptions from the Act’s stringent requirements. [18] Though there are several amendments, the most important one is the formation of the Endangered Species Committee, also known as the “G-d Squad”, which could exempt a species from ESA protection.[19]  

The 1979 Amendments were enacted to amend the ESA as follows: “extend and increase the authorization of appropriations; direct the secretary of the interior to designate the Endangered Scientific Authority for the implementation of CITES; create the International Convention Advisory Commission; direct the U.S. Fish and Wildlife Service to establish a prioritization system for listing; extends scrimshaw exemptions for an additional three years.”[20]

The 1982 Amendments to the ESA were created because Congress recognized “that the law created an unintentional incentive for private property owners to harm rare species.”[21]  This is because, in part, landowners with prelisted species on their land (listing is a lengthy process and prelisting as a “candidate species” is an attempt by Congress to address the problem before they are officially listed), may “purposefully eradicate candidate species and habitat on their property so that future ESA sanctions would not hamper development.”[22] These amendments allowed landowners to create habitat-conservation plans regarding a candidate species that would allow them to “take”[23] listed animals, so long as the species was protected somewhere else.[24] 

The 1988 Amendments to the ESA further “improved the situation for prelisted species by requiring the Secretary to monitor the status of candidate species and make an emergency listing of a species if necessary.”[25]  However, “Congress has not increased the FWS budget to allow additional resources for monitoring candidate species.”[26] The 1988 Amendments include other amendments, such as those dealing with recovery matters, reporting requirements of “all reasonably identifiable expenditures by the Federal government and States that received” certain species funds, and protection for endangered plants.”[27] 

Current Status and Future of the Endangered Species Act 

Due to the current economic situation in the United States, setting the national budget was a matter of extreme debate. Though Congress debated until the eleventh hour over the 2011 Budget Bill, they successfully passed the bill in time to avoid a government standstill. However, the budget bill did not only speak to the nation’s budget. It also contained a rider that affected gray wolves in the Northern Rocky Mountains area.[28]  The rider stated:

Before ending of the 60-day period beginning on the date of enactment of this division, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the Order and Judgment issued by the United States District Court of Wyoming in Case Numbers 09-CV-118J and 09-CV-138J on November 18, 2010.[29]

This legislation delists gray wolves in Montana, Idaho, eastern Oregon, eastern Washington, and north-central Utah from federal protection under the ESA.[30] The Fish and Wildlife Service will continue to federally protect wolves in Wyoming “until the state has a Service approved regulatory framework for wolf management.”[31]  Management of gray wolves in the federally delisted states will now be under state control.[32]  Unlike delisting by the Fish and Wildlife Services following a scientific review, judicial review is not available on the Congressional legislation.[33] The bipartisan supported federal delisting was headed by Sen. John Tester (D) of Montana and Rep. Mike Simpson (R) of Idaho.[34] 

The legislation marks the first time Congress, not a scientific finding of species recovery, delisted a species protected under the 37-year-old Act.[35] Many environmentalists criticize the delisting of the gray wolves in this manner, “calling it a political maneuver designed to circumvent the Endangered Species Act.”[36] Andrew Wetlzer of the Natural Resource Defense Council called the rider “a significant blow”. He further stated that “[l]eaders from both parties are completely undercutting the basic principle of American wildlife conservation: that science should dictate which plants and animals will be protected, not the whims of politicians.”[37] Additionally, “legal experts warn the administration’s support of lifting protections for the animals opens the door to future meddling by lawmakers catering to anti-wildlife interests.”[38] Critics of the legislation argue that by attaching the rider to the budget bill, a legislation that needed to pass quickly, anti-wolf advocates found a way for Congress to pass legislation that never should have gone through. 

Conversely, supporters of the legislation argue that this is not the start of a slippery slope towards extensive Congressional delisting of protected species, because the gray wolves present a unique situation. The question of whether to delist the gray wolf in the Rocky Mountain area was a hot topic over the last decade. The number of gray wolves has risen significantly, to the point that supporters of the rider believe the species is recovered.[39] The gray wolf has been delisted and relisted, and the question of its proper status has appeared many times in front of a court.[40] In fact, the most recent case was settled hours after Congress decided to include the rider.[41] In the most current case, U.S. District Court Judge Donald Molloy of Montana rejected a settlement allowing partial state management of the gray wolves, deciding to keep gray wolves under federal protection. This ruling is now nullified after the new legislation.[42]  

Overall, the effect of the new legislation on the power of the ESA remains to be seen. Critics of the legislation believe a harmful precedent has been set, arguing with more “must-pass” legislation on the horizon, interested lawmakers “will hold other species and habitat protections hostage.”[43] The trouble goes beyond the delisting of the gray wolves, and goes to the manner in how they were delisted. Conversely, supporters remain resolute that the gray wolves presented a one-time necessary situation for Congressional intervention. Time will reveal the true effect of this legislation.  

As with any piece of legislation, amendments are made and changes are implemented.  The modifications to the ESA made over the years have largely been for the greater good of endangered species.  However, financial concerns (i.e. the Federal budget) and other political matters sometimes intervene in the proper execution of a piece of legislation.

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